U.S. position as a leader has been damaged by non-participation
U.S. failure to ratify UNCLOS raises fundamental questions regarding not only the future of legal regimes applicable to the world’s oceans, but also U.S. leadership in promoting international law and order.
Additionally, our partners lose confidence in the ability of the United States to make good on its word when we negotiate and sign treaties but don’t ultimately become party to them, especially as in the case of UNCLOS where the U.S. negotiated aggressively to win valuable concessions and won them.
Quicktabs: Arguments
During the UNCLOS negotiations, there was concern by the global community and the US for the greater good to avoid an oceanic tragedy of the commons.n57 Thus a way had to be found to accommodate US interests even on seabed mineral extraction matters. As a result, negotiations continued for a number of years and resulted in a separate agreement responding fully to US objections.n58 This agreement has now been accepted by 140 states but curiously and strangely not by the US for which it was designed!n59 This yet again illustrates the difficulty US negotiators have at critical international meetings when they achieve what is required. This problem moreover undercuts US credibility internationally as a reliable negotiating partner. The world's impression is that the US propounds, urges, uses its bully pulpit, negotiates strongly, and then fails to follow through. A tragedy of the commons may be more difficult to avoid than otherwise without the strong US leadership made possible by its following through with advice, consent, and ratification.
But this will change as these initiatives continue to reconfigure sea power itself. Consequently it is not surprising (but unfortunate) that the Cooperative Strategy failed to promote international law of the sea as the organizing principle and principal goal of U.S. maritime strategy. This glaring omission has been noted by numerous friends and allies, who time and again reminded the United States of the centrality of international law in their responses to the original thousand-ship-navy concept. Writing separately, naval commanders from France, Ghana, India, Portugal, and Spain all made reference to the importance of international maritime law in their comments on the thousand-ship navy published in 2006 by the Proceedings of the U.S. Naval Institute.41 A year later, many of the same chiefs of service were asked to respond to Admiral Michael G. Mullen’s plan for a new U.S. maritime strategy. Once again, international law was a prominent feature of their replies; the leaders of the naval forces of Brazil, Peru, Portugal, Colombia, Uruguay, Lebanon, and Spain urged the United States to ensure that maritime security is rooted in multilateral legal frameworks.42 It is especially important that the vigorous expansion of maritime partnership integration propelled by international law be maintained. The maritime domain awareness provisions of the SOLAS Convention, the counterproliferation and counterterrorism elements of the SUA 2005 protocols, and PSI, with its informal nature, and Security Council action against piracy, constitute the greatest package of multilateral maritime-security commitments since the interwar period of the 1930s. The United States led each of these efforts, but there is a widespread perception that the American “brand” has suffered since and that the diplomatic influence of its friends and allies in Europe has diminished.43 Meanwhile, that of China and Russia is expanding. The upshot is a degree of doubt about the ability of the West to shape the future direction of international maritime law toward a shared vision of the rule of law at sea. This means that we should be prepared to make even greater investments in cooperation, and the development of international maritime law and institutions, to realize the goals of the Cooperative Strategy.
By the continual erosion of our nation's oceans leadership, badly needed American jobs are lost. The consequences are also serious as to how we are viewed by other nations. When the United States achieves everything it requires in a Convention, including a tough revision meeting all of its objectives, not to adhere makes it more difficult for America to negotiate other agreements. Our friends are simply astounded that the nation which achieved more than any other through the Convention has still not joined. They conclude from the flimsy arguments they hear against the Convention that America has simply gone isolationist. As such, our non-adherence continues to harm United States credibility and leadership in oceans matters and, more broadly, in our foreign policy. It is past time for Senate Advice and Consent.
U.S. presidents do not create and shape multilateral structures because they believe in global governance as an abstract philosophy. They do so because they want to advance the strategic and national security interests of the United States, which, for more than 65 years, have been tied up in the preservation and strengthening of a rules-based international order. These structures are not always perfect. When they are flawed, the tough process of ratification makes sure that problems are addressed. Unfortunately, however, doctrinal statements against the very idea of participation in multilateral organizations and agreements are now routinely undermining U.S. leadership overseas. This may have been an indulgence the United States could afford in the "unipolar" 1990s, but faced with a power transition in Asia, it is a strategic blunder that only emboldens those who long for the end of the U.S.-led international order.
Formal membership prerogatives aside, given the conflation of UNCLOS and current customary law, U.S. membership in UNCLOS will reinforce customary law and give the U.S. a stronger basis to affect its development in the future. Ironically, U.S. isolationism from UNCLOS serves as the leading example for others who would selectively choose among UNCLOS provisions or even abandon it altogether, thereby eroding customary law. The U.S.’ current posture undermines the very legal principles the U.S. professes to support.
Today, not surprisingly, some find inconsistency and even hypocrisy in the U.S. practice of referring others to the Convention’s obligations without incurring reciprocal treaty obligations.97 U.S. arguments on substantive issues are burdened with the stigma of unilateralism,98"Playing by or Playing with the Rules of UNCLOS? ." in Military Activities in the EEZ: A U.S.-China Dialogue on Security and International Law in the Maritime Commons, edited by Dutton, Peter A. U.S. Naval War College: Newport, Rhode Island, December 2010. [ More (4 quotes) ] making it more difficult for states committed to the Convention’s processes and multilateral framework to support underlying U.S. arguments even where there may be basis for substantive agreement.99"Statement of Gordon England: Accession to the 1982 Law of the Sea Convention and Ratification of the 1994 Agreement Amending Part XI of the Law of the Sea Convention (September 27, 2007) ." Testimony before the Senate Foreign Relations Committee, September 27, 2007. [ More (2 quotes) ]
Further delay in U.S. accession to the Convention, of course, bears risks and costs for the United States. The Convention became open for amendment for the first time in November 2004. This means that our ability to participate in consideration of any such amendments will be limited. The work of the Commission on the Limits of the Continental Shelf is proceeding: and as a non-party to the Convention, the United States is not eligible to submit a claim for the delineation of its broad outer continental shelf, which could hamper efforts to develop the resources of the shelf. More generally, by staying outside the Convention, the United States risks calling into doubt its commitment to the balance of interests codified in the Convention for uses of the oceans. In the long run, this could serve to undermine the order and stability on the oceans fostered by the Convention, to the detriment of U.S. interests and of all users of the oceans.
For the United States to refuse to adhere to a Convention even after the rest of the world met every single one of our demands for changes to the Convention will severely impact the ability of the United States to negotiate international agreements. I believe this will have a particularly serious effect on our security interests, many of which depend on mobilizing our allies. Certainly, as a sovereign nation, we have every right to negotiate a treaty and then decide not to ratify, but in this instance, where we specified the changes necessary for United States support that were then agreed to by the rest of the world, even some of our closest friends have difficulty understanding our behavior in not moving forward to date. A failure to ratify at this point will have adverse effects for our foreign relations with even some of our closest allies. We are the world’s most powerful military power, but we still need the understanding and support of our friends – and we need to act with consistency and reliability in our foreign policy;